From Judgment To Judgment - Johore Bar...

11 INFO JOHORE BAR – JANUARY 2012

From Judgment To JudgmentS. Balarajah of the Middle Temple Barrister-at-law

A caveat or several caveats for good measure encapsulated in the forefront of anarticle of this nature will insulate the writer from unkindly cuts actions aspersionsand or acts by those who claim to be injured and or from the invidious and cowans toliberty to engage in fair comment and freedom of expression. There is of course nomalice of aforethought or after thought in this survey and discussion.

In Bridges vs California (1941) 314 US 252 Justice Frankfurter said:"Judges as persons or Courts as institution are entitled to no greater immunity from criticism thanother persons or institutions. Just because the holders of judicial office are identified with theinterests of justice they may forget their common human frailties and fallibilities. There havesometimes been martinets upon the Bench as there have also been pompous wielders of authoritywho have used the paraphernalia of power in support of what they called their dignity Therefore,judges must be kept mindful of their limitations and their ultimate public responsibility by avigorous stream of criticism expressed with candor however blunt:"David Pannick in his brilliant book "Judges" page 143 observes thus:"Wigs and gowns and other types of legal ceremony encourage legal pomposity and distancecourts from common standards and common sense. They imply to outsiders (and to insiders) thatjudges are not ordinary human beings whose conduct and statements are subject to normalstandards of assessment and criticism. The protective clothing of the judge deters all but the mostpersistent critic. As one of Dickens's characters put it: 'Would you care a hapenny for the LordChancellor if you know'd him in private and without his wig? - certainly not'."And the late Lord Denning that delightful Judge and master of the English language and a long standing Master of the Rollsin England said as follows on freedom to make fair comment on Judges inability to respond in the case of R-vs-Metropolitan Police Commissioner ex-parte Blackburn (No: 2) 1968 2QB150 at 154"It is right of every man in Parliament or out of it in the press or over the broadcast to make faircomment even outspoken comment on matters of public interest. Those who comment can dealfaithfully, with all that is done in a court of justice. They can say that we are mistaken and ourdecisions erroneous whether they are subject to appeal or not. All we would ask is that those whocriticize us will remember that from the nature of our office we cannot reply to their criticisms.We cannot enter into public controversy. We must rely on our conduct itself to be its ownvindication."Salmon L.J. in R-vs-Metropolitan Police Commissioner ex-parte Blackburn (No: 2) 1968 2QB150 said:"It follows that no criticism of a judgment, however vigorous, can amount to contempt of Court,providing it keeps within the limits of reasonable courtesy and good faith."T.N. Seshan who was Indian Commissioner for Elections in his book 'The Degeneration of India' at Page 44 said thus onjudicial accountability:-"Every Judge in the country recognizes that the professional competence and social relevance ofthe judicial institutions cannot be unrelated to the system's accountability. But the enforcement ofaccountability must be so sensitive that it does not make a dent in judicial independence. If anoutsider tries to enforce accountability, it will certainly affect judicial independence. Nobody canwatch the watchman. The judiciary itself will have to adopt the culture of accountability and setup control mechanisms."And on a code of conduct for Judges he said"...about half the high courts have already adopted it. The rest find it too stringent. Or, they aredebating that the restatement of basic principles may convey the impression that we haveotherwise not been practising the prescribed judicial austerity... My own feeling is that judges donot need a code of conduct in the strict sense. Rather, it is a restatement of those principles ofjudicial life and conduct which might come in handy for us whenever we are in a dilemma. Theneed for a code of conduct may imply that there is something wrong with the system. That maywell be so because a system cannot be higher than the quality of the times in which it functions."

S. Balarajah


I cannot resist quoting the great Malaysian Ruler Judge Jurist lawyer and linguist His Royal Highness Sultan Azlan Shahwho in a 1986 Public Lecture delivered at Dewan Tuanku Syed Putra, Universiti Sains Malaysia, Penang in December 1986and reported in (1987 (1) MLJ Page ccxxxviii) said as follows:"The Judges are not beholden politically to any government. They owe no loyalty to ministers.They have longer professional lives than most ministers. They like civil servants, see governmentscome and go. They are "lions under the throne" but that seat is occupied in their eyes not by Kings,Presidents or Prime Ministers but by the law and their conception of the public interest. It is tothat law and to that conception that they owe their allegiance. In that lies their strength."In his other book "A Heart Full Of Burden" T.N. Seshan quotes his opening address to the Lucknow Lawyer's Forum on 9-5-1994 what he had said in:-"I am deeply grateful to you for giving me this opportunity of talking to a group of people who areessentially closest to God. I say this, because if there is own vision in which the human being cansee closest to God, it is justice and the rule of law. Of all the attributes which you attribute to theGod of your choice, you attribute him with affection, with various other qualities, but I thinkultimately in the heart of every devoted person the concept is that whatever else God may or maynot give him, that God will certainly render him justice. That is the basis on which almost all of ushave been nurtured in the belief of a God who is benign, who is friendly, who may be harsh in theshort run but in the medium to long run is absolutely neutral and full of justice, tempered withcompassion."

"Therefore, I consider the opportunity of talking to this Lawyers' Forum a very great advantage.The advantage has been both multiplied and made frightening by the presence of distinguishedmembers of high judiciary in the audience. For 36 years I was a civil servant and all that I learntwas that one respected the judiciary totally, unquestioningly, completely, always ever. And it neednot have to be the Supreme Court it need not have to be a High Court it could even be a districtcourt or a subordinate court in the district, but the law was the law and therefore there is noquestion of not respecting it."Judgments are what learned Judges deliberate consider and deliver. They are distilled from precedent to precedent.Judgment to judgment. Webster's Dictionary defines "Judge" as one who has skill science or experience sufficient to decideupon the merits value or quality; a person appointed to determine the winner settle any controversy; to declare the law; tohear and pass judgment to think or suppose, to form an idea or opinion.And judgment is defined as a legal decision or an Order or sentence given by a legally appointed and constituted Court oflaw.Greene M.R. in Yuill v Yuill (1945) AER Page 183 (Vol.1) said thus :"Puisne judges would be the last persons to lay claim to infallibility even in assessing thedemeanour of a witness. The most experienced judge may, albeit rarely, be deceived by a cleverliar or led to form an unfavourable opinion of an honest witness and may express his view that hisdemeanour was excellent or bad as the case may."The precept given by Polonius to Laertes was this :"This above all: to thine own self be true, and it must follow, as the night the day, thou canst notthen be false to any man."In a Federal Court Report 1978(2) MLJ page 151 Mr Justice Raja Azlan Shah F.J. (as His Royal Highness then was) said:"It is best that truth should be out and truth should prevail"Henry Cecil in his book "The English Judge" said as follows :"The public puts great trust in our judges and on the whole this trust is not abused. But a fewjudges do occasionally say wounding and hurtful things to or about witnesses counsel or solicitorsand the person concerned usually has no remedy."It is useful to recollect once again the poignant words of His Royal Highness Sultan Azlan Shah in his speech at the openingof the Moot Court on 30-4-84 reported in (1984) (2) MU page xi :"Being a judge is the best career in the world, one is never contradicted, one is never interruptedand one always has the last word."


Judges are His Majesty's Judges. The King is the fountain of justice. Judges have been described as lions on the bench andunder the throne. Bracton wrote :"Quod Rex non debetesse sub homine sed sub Deo at lege".("That the King should not be under man, but under God and the law")It is interesting to note that when Appellate Court Justice N H Chan (now retired) used the words "Something is rotten inthe State of Denmark" taken from Shakespeare in Hamlet in the case of Ayer Molek Rubber Co Bhd & Ors v Insas Bhd & Anor

1995 2 MLJ 734 everyone thought it was a wicked pun and fun. The case and the Shakespearan quote gained internationalnotoriety for the personalities involved the location of the Courts in Wisma Denmark and the subject matter andpersonalities in those troubled and turbulent times of the Malaysian legal arena. But as far back as 1977, Justice FredArulanandom in Lui Ah Yong v Superintendent of Prisons, Penang 1977 1 MLJ 226 noted in his judgment thus:"Something is rotten in the State of Denmark". These words were uttered by Marcellus inShakespeare's Hamlet after the ghost of Hamlet's father appears to Hamlet and beckons Hamlet tofollow it, and Hamlet follows. Marcellus uses these words not so much in condemnation but morein frustration and bewilderment."The case Chong Siew Choong v Public Prosecutor 1996 (5) MLJ Page 66 was a report of a decisionon an application for an early trial of a criminal case. The learned Judge the Hon. Mr Justice DatoAbdul Malik b. Ishak made these observations in his judgment :"There are four observations to be made. Firstly, there are three High Courts ofMalaya comprised in Johor particularly Johor Bahru manned by three residentHigh Court judges. The senior resident High Court judge will be in charge of HighCourt No. 1. This is the privilege accorded to him. The next senior High Court judgewill control and take charge of High Court No. 2, while the junior and notnecessarily the youngest will be in charge of High Court No. 3. That would be thehierarchy of the three High Courts of Malaya at Johor Bahru. For convenience thethree resident High Court judges will be referred to as J1, J2 and J3 having regardto their seniority and to the High Courts of which they are in charge.

Secondly all businesses of the three High Courts are evenly distributed on equalbasis dependent on the numbers allotted to these courts and the registries woulddistribute the work load according to the numbers as predetermined. To date theregistries have done a marvelous job and from time to time J1 have re-allot newnumbers to the three High Courts. Thirdly J1, J2 and J3 have no choice but to handlethose cases distributed by the registries and whether those cases would be fixed forearly hearing would in turn be dependent on the respective High Court judges whowould normally determine the hearing dates through their respective deputyregistrars. Fourthly, I am J2 in charge of High Court No. 2."Having said all the above the learned Judge dismissed the Application for early trial. But wasthere a pressing or necessary need to say all that was said.In the case of Capitalcorp Securities Sdn Bhd v Ab Malek Beh Bin Abdullah (2005) 3 AMR Page295 the same Judge quoted Charles Lamb in "The Two Races of Men" as follows :"The human species according to the best theory I can form of it, is composed of two distinct races,the men who borrow and the men who lend".It is germane to note that Shakespeare in Hamlet Act 1 scene 3 wrote as follows:

"Neither a borrower nor a lender be,For loan oft loses both itself and friend,

And borrowing dulls the edge of husbandry."It appears that some Judges are apologetic in having to put pen to paper to give reasons for their findings. In 2005 (3) CLJPage 812, Vincent Ng J said :"It is consistent with judicial prudence and indeed with the current mood for transparency that ajudge should endeavour to promptly render at least the crux (however skimpy) of the rationale forhis decision even should he be so severely pressed for time especially where the subject matterinvolves an immense sum - the gross debt in the instant case is RM1.6 billion; such prudence so as toobviate any speculation in financial circles that the judge may have made a peculiar orcontroversial decision at odds with a reasoning mind."

Tan Sri Haidar(later Chief Justice Malaya)

Dato’ Malik Ishak(later Judge Court of Appeal)

Tan Sri Ghazali Yusoff(later Federal Court Judge)


A few quotes from the novel and lengthy judgment of Vincent Ng J in lndah Desa SaujanaCorp Sdn Bhd & Ors vs James Foong Cheng Yuen & Anor (2005) 4 CLJ page 925 will show thethinking behind the writing. The words and thoughts may or may not be appealing to somewho may be somewhat modest of themselves:"… It is consistent with judicial prudence and the current mood of transparency that Ishould write a judgment setting out detailed grounds of my decision and delivering thesame in open court. This civil suit case (sic) is as novel as it is peculiar. Let me put it instark terms. A judge of the Malaysian High Court (1st defendant) has been sued for RM24,362,312 with interests (sic) and costs and the Malaysian Government (2nd defendant)has also been roped in" (see page 931)

"I need not elaborate save to say that this is a case of grave import in the Nation'shistory and I have never been found wanting when it comes to taking up an intellectualchallenge." (Page 931)

"... It is not the reading of cold print but the acute intellectual and analytical discourseor debate on the law in fine English between counsel and the judge that breathes lifeand adds sparkle to the issues for determination." (Page 933)

"I, not one ever know (sic) to take the path of least resistance, went on to consider thestate of the law in this regard." (Page 937)

"The specific principle is that a plaintiff is entitled to a just and well considered determination of his cause before thejudge even if his cause is against another brother judge named James Fong, James Bond or James Non." (Page 942)And a personal touch displaying personal knowledge and the ambition of some promotion."Thus I am constrained to observe that this case may have been designed to cause maximum embarrassment to thejudiciary in general and the 1st defendant in particular with this scurrilous attack and especially so considering thatit was launched at the crucial juncture in the 1st defendant's career when he was at last about to achieve his longbelated and well deserved promotion." (Page 958)There must not be a shadow of doubt of a feeling of frustration or a pity-party be it for and on behalf of litigants counselJudges or whosoever. Litigants and researchers in years to come ought not to be minded to think that someone or someaction is languishing in a position.No doubt that a judge could trace the causes of delay but to a Judge no task should be unfortunate and transfersassignments and reassignments are part and parcel of exigencies of service in the Temple of Justice and litigants ought notto be bothered with these inner workings in the sanctum sanctorum. They must not feel that something is not right in theTemple of Justice.In a Judgment in the case of Low Keang Guan v Sin Heap Lee-Marubeni Sdn Bhd 2005(5) AMR 400, the Judge the Hon MrJustice Abdul Malik Ishak wrote as follows :

"This was a part heard case of the civil one judge and I had the unfortunate task of completing hispart heard. I will refer to the notes, of evidence recorded by the civil one judge as well as thatrecorded by myself in the course of this judgment. It must be borne in mind that this caseemanates from the civil one (1) division when I was in the civil five (5) division. This case followedme to the commercial four (4) division when I was transferred there and now this case is still withme when I was transferred to the civil six (6) division. I am still in the civil six (6) division. In fact,I am still in the civil division, located at Wisma Denmark, after all these years. Oh, what a shame! Ithas been a long arduous route. But the hearing of this case must proceed, no matter whathappens, to its final conclusion. Justice must be seen to be done to the parties."The jurisdiction of Malaysian Civil Courts is the adversarial system, and an adversary is an opponent one who strikes andthere is opposition. Yet some Courts seem to hand down scholastic and well researched judgments in exparte applicationssee Hong Leong Bank Berhad v Goh Sin Khai 2005 (3) AMR 461. Even when in midstream when the Appellant "throws in thetowel and conceded to the Judgment" a lengthy 13 page judgment is handed down — see Ng Hong Chai vs Teoh Ah Kow

2005 (5) CLJ 177.Kwek Seow Kee & Anor v Kt Packaging Sdn Bhd (No.1) 1998 (2) CLJ Supp 472 was an Appeal to the Judge in chambers toquash the decision in favour of the plaintiffs given by the Senior Assistant Registrar. The Appellant's Counsel had in midstream conceded that the Appeal was misconceived and yet a rather lengthy written judgment was handed down.In the Collector of Land Revenue Kota Bahru v Yusoff Bin Yunus 1972 (2) MLJ 53 the parties were not represented and yet awritten judgment was handed won by Muhamed Zahir J (as he then was) and he said that it was for future guidance ofCollectors of Land Revenue.

Y.A. Dato’ Vincent Ng (late)

Y.A. Tan Sri James Foong


Ng Kah Tiang v Chin Peng Tow 1977 (1) MLJ 30 was a divorce petition. The learned judge gave grounds for dispensation ofservice on the respondent on ex-parte application. It laid down acceptable guidelines for Court to order service to bedispensed.Socrates said that four things belong to a Judge : "to hear courteously to answer wisely to consider soberly and decideimpartially". With due respects to find a fair combination of the 4 things stated by Socrates in a single person is a rarity. Inthe book "With Justice For None" Gerry Spence wrote:

"I have seen good citizens ascend to the bench and seen them as if by the touch of hell, change intodespots. Power does strange and evil things. I have seen whole forests of competent lawyersquaking like aspens in a windstorm before a cruel judge who relished not justice, not fairness, nottruth, but his own precious power. I have quaked myself before these tyrants, and still do, and didthe first time I came before one many years ago."

"Power! We see it, but sometimes it confuses us. It is mysterious. It may even seem holy. From theearliest times, the work of judges was deemed nearly equivalent to the work of God, and when ajudge passed by the people tipped their hats, willingly extending to the judges all due reverencewhile the judges often ordered the whip and the chains against them. And when the people finallyrose up Power suppressed them usually through the judges."The case of Far East Food Industries Sdn Bhd v PT Anekapangan Dwitama is a judgment of theCourt of Appeal. It is most interesting. Her Ladyship the Hon. Siti Norma Yaakob JCA (as she thenwas) delivered decision of the Court. it was an application for leave to appeal against thedirection and or judgment of Richard Talalla J (now retired) directing the respondent's counselto produce a draft judgment.Page 131 of the report the learned Appellate Judge Her Ladyship said as follows :"The learned judge allowed the respondent's application and ordered theappointment of a Provisional Liquidator to manage the affairs of the applicantpending the outcome of the petition. Dissatisfied the applicant appealed to thethen Supreme Court and the appeal is registered as Supreme Court Civil AppealNo. 02-350-94 and this appeal is still pending.

It was following the lodgment of the appeal that the learned judge directed Miss L.Y. Oon, counselwho appeared successfully for the respondent in the application for the appointment of aProvisional Liquidator to prepare a draft judgment on the order he had granted on 23 June 1994for his consideration. It is in connection with this direction that the present proceedings areconcerned.

Placed in the position of the applicant we fully appreciate its reluctant to formally and publiclyquestion the action of a senior member of the judiciary. However considering the very nature ofthe complaint and that the judgment has been published in a number of law journals we are of theopinion that delay should not bar the applicant's complaint from being reviewed as once theconduct of any member of the judiciary is challenged it becomes a grave matter of public concernas such a challenge invites public interest and it is therefore incumbent upon us the forum towhich the complaint has been lodged to consider the correctness or otherwise of the conductcomplained of. It was based on these considerations that we :

(1) granted an extension of time to the applicant to file this motion out of time;(1) granted leave to the applicant to file an appeal against the directive of the learned

judge directing Miss L.Y. Oon to prepare the draft judgment;(3) dispensed with the filing of a formal record of appeal as whatever papers that needed

to be filed are already before us; and(3) treated this motion as a substantive appeal".The trial Judge Richard Talalla (now retired) to justify his action said as follows :

"The invitation to counsel for the applicant to prepare a draft judgment was madein order to expedite the final resolution of the dispute between the parties. Theinvitation was made openly through the normal channel of the judge's staff. Therewas nothing surreptitious about it."The Appeal Court Judge Her Ladyship Siti Norma Yaakob (as she then was) in delivering thejudgment of the Court went on to say hold and rule most vehemently thus :

Y.A. Tan Sri Dato’ SeriSiti Norma Yaakob

Richard Talalla

(Cont’d page 16)


"With respect we cannot accept his reasoning as he was approaching the issue on the premise thatthe applicant now the appellant was not prejudiced by the draft judgment prepared by therespondent's counsel.This is clear when he posed and answered the following question when considering the cause of action he had taken.A pertinent question to ask is what prejudice has the respondent (i.e. the appellant before us)"suffered as a result of the draft judgment prepared by counsel for the applicant" (i.e. therespondent before us). As far as I can see none."

"We consider this approach to be highly erroneous as what is being questioned is not the effect ofwhat the draft judgment has on the appellant but the conduct per se of the learned judge himselfin inviting (as was the term used by the learned judge) the respondent's counsel to prepare adraft judgment which he later adopted as his own. Is such conduct acceptable?"

We emphatically say "no" for the following reasons."

"In the exercise of his judicial functions a judge does a balancing exercise when deciding andresolving disputes between opposing parties or interests. Thus hearing a case making a decisionon the case and supporting much a decision with reasoned arguments and findings by way of anoral or written judgment form part and parcel of a judge's judicial acts or functions. The mostimportant characteristic of his judicial functions is the exercise of independent judgment anddiscretion. It is for this very reason that a judge cannot under any circumstance delegate any ofhis judicial functions to anybody for whatever reason whatsoever. In the exercise of his judicialfunctions a judge is expected to do justice to the parties appearing before him. He cannot do so ifhe appears to be partial to any party as justice must not only be done but must be seen to havebeen done."A curious written judgment that shook the Bar Bench the litigants and the public of Malaysia was the well ventilatedjudgment of the Penang High Court in the case of Yusri Mohamad & Anor v Aznan Mohamad & Anor (2002) 4 CLJ Page 43.The case report is the written judgment of a High Court Judge on an appeal from the Sessions Court civil action on arunning down civil action. In the said judgment the High Court Judge R.K. Nathan J (now retired) added some pages to thewritten judgment under the untoward heading "Personal Attacks On High Court Judges By A Court of Appeal Judge".The said High Court Judge (now retired) said thus :

"Now it pains me to deal with a subject that has been hitting the news recently. Ihave noticed that for a few years now a particular judge of the Court of Appealhas been making personal attacks against High Court judges. Whilst a few havereceived very uncomplimentary remarks, I have been targeted for personalvilification. Whilst no other judge of the Court of Appeal has descended to basecoarse and crude remarks against judges it seems that Mr Justice Gopal Sri Ramis the only one who has been making these personal attacks. Whilst I agree thatas an appellate judge he has every right to criticize my judgments but by nomeans will I accept his personal attacks against me."The Malaysian Bar Council was not unnaturally aghast and taken back by the Judgment and in an immediate statement(03-08-2002) it said :

"In a prominently publicized judgment dated 31 July 2002 concerning a motor-accident matterJustice RK Nathan made public his accusation that he had become the 'target for personalvilification' by Gopal Sri Ram JCA. The full text of the said judgment, the Bar Council expresses itsdeep shock over Justice Nathan's outburst of emotions relating to his perceived victimization (whichforms a considerable portion of his judgment.

The Council therefore further calls on the Chief Justice to make appropriate representations to thePrime Minister to advise DYMM Yang Dipertuan Agong to set up a Tribunal against Justice Nathanunder Article 125 of the Federal Constitution."Dato' Param Cumaraswamy the former UN Special Rapporteur on the Independence of Judges and Lawyers quoted in theBar Council's Journal Insaf Vol XXXXI No. 4 said inter alia :"In the case of Justice R K Nathan and Justice Gopal Sri Ram the question to ask simply is whetherthe contents of the five pages he wrote about Justice Gopal Sri Ram and added on to a judgment inan unrelated case was proper and if improper whether his conduct was detrimental to the dignityof the office of a judge and the institutional independence of the judiciary. Or put in another waywas his conduct an abuse of the immunity he enjoys as a judge from proceedings for anything said

Y.A. Dato’ Gopal Sri Ram


or done? As the expressions in those five pages had no relevance to the appeal before him in apersonal injury case did he act within his jurisdiction or within his judicial power?

Or even put it in another way did he abuse the insulations he is clothed with for the protection ofhis judicial independence? Another matter of concern is whether Justice R K Nathan was incontempt of the Court of Appeal. Certain words expressed in those five pages were intemperate inlanguage, threatening and intimidating. He should know better in the light of the severalcontempt cases he tried. The ex-tempore judgment delivered by Justice Gopal Sri Ram was ineffect the judgment of the Court of Appeal."A brilliant Indian Judge Justice V R Krishna Iyer (as he then was) in his book "Off the Bench" made the following commentsat pages 66-69 as follows in a similar situation :"Quite recently a new judge of one of the many High Courts in the country wrote a long and learnedjudgment reversing Session's Judge's Order. The two, perhaps, were colleagues till some time back.However, the single judge from the High Court set aside the Session's Judge's Order as notsustainable. Perhaps, he is right or his order may be set aside by a higher court. Such things happenin a hierarchical system of judicature. What perplexed me was the impropriety implicit in the ruderemarks made by the judge of the High Court about the performance of the Sessions Judge."

"I am constrained to state here that it is rather pitiable and lamentable that a fairly senior judge(Sri Basant, Sessions Judge, Thrissur), who is expected to apply and the fundamental principles ofcriminal jurisprudence correctly, is not aware of the law laid down by the Apex Court."

For the High Court to use expressions like pitiable and lamentable is pitiable, lamentable and to addinsult to injury, to mention specially, with what intent." A profusion of precedents may be cited tosupport the proposition that judges should not be guilty of intemperate, irritable, arrogant orsupercilious behaviour or observation that is unbecoming of the noble office."The wise words of The Hon. Datuk Seri (now Tun) Dr. Mahathir bin Mohamed reported in[1985] 2 MLJ page no. cxcv come to mind. He said:"To be engaged in public recrimination, to go into public combat armed to theteeth with intemperate language is not to show sobriety, or to be fair, or to bemature or to be constructive. In Malaysian society one does not spit in the eyeof a man and then expect him to change his mind or to yield to your 'superior'wisdom."There were calls by various parties and the Bar Council to look into the conduct of Justice R.K. Nathan the Judge concernedbut nothing much seems to have turned on it.In his India Diary — The Star 29-03-2004 Coomi Kapoor wrote:"A Group of retired civil servants recently filed a Public Interest Litigation (PIL) in the SupremeCourt of India praying that it take over the administration of the country in view of the all-roundfailure of the politicians.Mercifully the highest court in the land had the good sense to say, "Thank you, but no thank you".Otherwise one shudders to think of the consequences.The nascent India founded on a clear division of powers and functions among the legislatureexecutive and the judiciary would have been thrown into turmoil".Judges must have sound and acceptable reasons for the interpretation and the application of the laws and they mustexercise both judicial restraint and discretion in a worthy and judicious manner. The power in the hands of the judiciary ishuge. They must use it and not abuse it. Not even appear to abuse it. They must be above suspicion. And emotion.Immunity of high office ought not to be abused.To use the famous or infamous words of President Bush insofar as Parliamentary democracy is concerned there cannot beseen or heard that there is an axis of evil amongst the three branches of any Government nor should there be any suspicionof an incestuous trinity or for that matter any form of discord or accord amongst the 3.In an article 'Remembering Suffian in wake of Changes' (NST 09-01-2001) Muhammad Shafee Abdullah wrote that the lateTun Suffian once said :"… in our judicial system which is modelled along the English system if a magistrate makes anerror of judgment the High Court would correct it, and if the High Court makes an error ofjudgment the Federal Court would correct it, and if the Federal Court makes such errors, theerrors then become the laws of the land."

Tun Dr Mahathir Mohamed


Denning wrote that the English doctrine of precedents was started by Henry Bracton (1200-1268). Denning said "Bractonkept a notebook. He made notes of 2,000 cases from the old plea rolls in the thirteenth century. These were rolls ofparchment on which were written the pleadings in the cases tried by the judges. They were all in Latin. Bracton wrote inLatin. He used his notebook as the basis of a treatise on the Laws and Customs of England. In this treatise he gavereferences to previous cases, just as we do now. By using decided cases in this way he started the English system ofprecedent. In his notebook Bracton says :"Sit amen similia evenerint, per simile judicentur, cum bona sit occasio a similibus procedure adsimilia." (If however similar things happen to take place, they should be adjudged in a similarway: for it is good to proceed from precedent to precedent.)"The notorious case of Adorna Properties Sdn Bhd vs Boonsom Boonyanit (2001) 2 CLJ 133 may be a case in point. HighCourts were compelled to follow it though the Judges felt it was not good law. Beldeu Singh in The Law Review 2005 atpage 245 writes:"The main judgment of the Federal Court resulted in the rightful owner losing her title to apurchaser who "acquired" it from an imposter who had made false declarations and forged thesignature of the titleholder."At page 249 he writes:"As matters stand Adorna Properties Sdn Bhd had successfully claimed an indefeasible title orinterest pursuant to becoming a victim of a cumulative design of fraud by an imposter and thatcreates disorder and a modification in the Torrens system."The Court of Appeal in a decision in the case of Subramaniam Ns Dhurai v. Sandrakasan Retnasamy & Ors 2005 (3) CLJ 539dated 10-6-2004 and published in 2005 (3) CLJ 539 refused to follow Adorna properties. Appellate Judge Gopal Sri Raminter alia said:"accordingly, in my judgment our courts should no longer treat themselves bound by the FederalCourt judgment in Adorna Properties Sdn Bhd v Boonsom Boonyanit as it was decided perincuriam. It follows that this court and the High Courts must now proceed on the basis that theCode provides for deferred and not immediate indefeasibility."Ahmad Fairuz JCA (as he then was) in Subramaniam's case said "I agree with the judgment of Gopal Sri Ram JCA except

in so far as it adverts to the decision of the Federal Court in Adorna Properties as being per incuriam with the resultthat the courts may no longer treat themselves as bound by it."But it is reported that he went on to say "upon the principle of stare decisis this court has no option but to follow andapply the Federal Court in Adorna Properties. Indeed all courts whose jurisdiction is inferior to the Federal Courtmust abide by this case until it is set aside or dismissed by another decision of the Federal Court."The Judgment and views of the 3rd Judge in Subramaniam's case Dennis Ong JCA does not seem to be reported. It is curiousto say the least. And in the All Malaysia Reports (2005) 5 AMR 292 the only report is the judgment of Gopal Sri Ram JCAand it is not claimed by him to be the Judgment of the Court though the sub-head reads "Per Gopal Sri Ram and AhmadFairuz JJCA (dismissing the Appeal)"In the case of Chan Yock Cher vs Chan Teong Peng 2005 (4) CLJ Page 45 Abdul Hamid Mohamad Federal Court Justiceexpressed fears of the Apex Court becoming a circus. He said :

"The reasons have been amply stated by this Court in Adorna Properties Sdn Bhd (supra) withwhich we fully agree. The only other reason we would like to add is that to freely allow previousorders to be reviewed would lead to "panel shopping". An unsuccessful party in an appeal may tryits luck before another panel that may disagree with the view of the earlier panel. If he issuccessful in having the order reversed the other party will do the same thing again. Certainly, wewould not like to see this apex court becoming a circus that repeats the same show again andagain."Mr Justice Low Hop Bing in "Homebuyer Claims Tribunal: The Art of Judging" 2005 at The Law Review at Page 207 writes :"The art of judging requires not only a sound working knowledge of the law butalso a fine judicial temperament coupled with a passion and ability to bring aboutand fair and just resolution to the disputing parties."The brilliant judgment of Y.A. Datuk Zainun Ali a Judge of the High Court sitting as an additionalJudge of the Court of Appeal in the case of Noh Hyoung Seok v Perwira Affin Bank Berhad (2005) 3

AMR Page 659 is a gem in judgment writing compared to the so many mundane and too clinicalapproach to judgment writing.Y.A. Datuk Zainun Ali


Her ladyship has a good pen. Her words and expression are cereal crisp and her arrangements so methodical. It can beconsidered a benchmark in judgment writing in our Courts. Her style ought to be emulated by others if at all possible.Judgment writing is an art. Extraneous personal and unnecessary comments and over complimenting counsel is anunnecessary appendage.In the case of The Ritz Hotel Casino Ltd & Anor v Datu Seri Osu Hj Sukam 2005 (3) CLJ page 390 the Judge Mr Justice lan HCChin in dismissing a judgment to register a judgment on gambling debt held it being void on inter alia public policy quotedextensively from the Bible, the Quran, a 2200 year old South Indian Dravidian classic Tirukural Buddhist teachings and theRukun Negara to hold the illegality of the debt.Federal Court Judge the Honourable Mr Justice Augustine Paul is also a good and profound writer of judgments. Easy tounderstand and devoid of verbosity and pomposity. In PP vs Dato' Seri Anwar b Ibrahim (No. 3) (1992) 2 AMR 2017 at page2092 (1999) 2 MLJ 1 at page 63 Augustine Paul J (as he then was) defined with precision in plain simple English a primafacie case is in the following words :"A prima facie case arises when the evidence in favour of a party is sufficiently strong for theopposing party to be called on to answer. The evidence adduced must be such that it can beoverthrown only by rebutting evidence by the other side. Taken in its totality the force of theevidence must be such that if unrebutted it is sufficient to induce the court to believe in theexistence of the facts stated in the charge or to consider its existence so probable that a prudentman ought to act upon the supposition that those facts existed or did happen. As this exercisecannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnessesmust be done at the close of the case for the prosecution before the court can rule that a primafacie case has been made out in order to call for the defence."For an illustrative study see the seemingly wonton words of Abdul Malik Bin Ishak J in Nadarajan s/o Verayan vs Hong

Tuan Teck No. 1 at (2005) 6 AMR 231. It might appear that some judgments are padded with repetition unnecessaryverbosity quotes self flattering directions irrelevant exhibits and arguments to add length and pages to the judgments.Length in many situations is not all important. And length is not a yardstick of learning or scholarship. It is plain thatexuberant prose should be avoided. So must self-indulgent exhibitionism. It is distressingly clear that lawyers and litigantshave little time for frivolities.Great furore seems to have been caused by the Court of Appeal judgment in the case of Metramac Corporation Sdn Bhd(dahulunya dikenali sebagai Syarikat Teratai K.G. Sdn Bhd Appellant and Fawziah Holdings Sdn Bhd Respondent (CivilAppeal No. W-02-1013-2003) where 2 written Judges were handed down. The main was by Gopal Sri Ram JCA. The wellknown profound and highly learned and brilliant Judge said inter alia as follows :"An agreement called the Share Sale Agreement dated 23 January 1991 was executed. Thereafter,the defendant's name was changed to Metramac Corporation Sdn Bhd the name by which thedefendant is now cited in the instant proceedings.Not long after the take over, a strange thing happened. Where doors were once closed to thedefendant before its take over, as if by the utterance of a magic spell all bureaucratic doors wereopened to the defendant after its take over by Metro Juara. And as if by the rub of a magic lamp,the Federal Government and DBKL who hitherto claimed to be impoverished suddenly foundthemselves flush with funds. They were now in a financial position compensate the defendant.The figures are staggering. In one way or another the defendant was to receiving total sum ofM$756 million. Let me give some details.

You may well ask how all this could have happened without the direct involvement of Tun Daim. Itis also incomprehensible why the defendant as it was constituted immediately before thetakeover by Metro Juara was not given this same financial support by the Federal Government.After all, at least two of the pre-takeover shareholders were either Government concerns orGovernment assisted concerns. And in the case of Tabung Haji, the ultimate beneficiaries wouldhave been the poorer section of our society. I think that it is a fair question to ask why taxpayers'money was channeled into the hand of two private individuals - to profit them - instead of a widersection of the general public. It is not at all clear why the Minister for Finance used his power tofavour Anuar Othman and Dato Halim Saad.Persons mentioned in the said judgment (a unanimous judgment of the Court) came out publiclyto protest on the findings. A public debate seems to have taken place. And persons mentioned inthe various judgments in this case seem to give their version their story and their explanations.According to New Straits Times of 18-1-2006 Yeo Yang Poh is reported to have said :"Businessman Tan Sri Halim Saad is entitled to give his side of the story followingthe judgment of Court of Appeal judge Datuk Gopal Sri Ram in the case of Fawziah Dato’ Yeo Yang Poh


Holdings and Metramac Corporation."

He said it was also the judge's right to make that observation in his judgment. There is nothingwrong in a civil case for a judge to write judgments of this nature."And one Muhamad Fawzi Abdul Karim who was the Project Advisor and who claims to have primarily assisted the sister inthe affairs of the company said that :"I as the Project Advisor and brother of Datuk Fawziah Abdul Karim, the then director of SyarikatTeratai KG Sdn Bhd, a family company (now known as Metramac Corporation Sdn Bhd) whoprimarily assisted my sister in the affairs of STKG would like to put certain facts stated in Halim'sstatement in proper perspective. (The Sun 25/1/2006)One is not too sure if the various letters statements allegations and comments border on contempt.In the book "The Art Of Writing Judgments "B.N. Chaudhuri" wrote as follows:"A Magistrate is fully justified in making criticisms in his judgment (provided he does so inrestrained and decorous terms), of matters relevant to the conduct and merits of the case and ofpersons who are witnesses but he should confine his criticisms to matters that are strictly relevantto the issue involved. He should be careful to avoid criticisms of the conduct of persons who are notwitnesses specially when they are in responsible official position. While on the one hand Courts areat liberty to discuss the conduct of the persons before them either as parties or as witnesses,untrammeled by any considerations on the other they are not permitted to travel beyond the recordand are bound to exercise due restraint on the language employed by them. In other words, theyshould neither make any such sweeping assertions as are not borne out by the evidence producedbefore them nor should they use language which is unduly harsh. They should play the part ofJudges alone and not that of propagandists and confine their whole attention to the evidence ledbefore them and to the matters requiring determination at their hands. It is incumbent upon aMagistrate to exercise proper restraint in making damaging observations. A Magistrate should notin his judgment in a criminal case make observations prejudicial to the character of any person whois neither a witness nor a party to the proceedings and who has had no opportunity of being heardand upon material which is not legal evidence in the case.

The language of a judgment should be temperate and sober and not satirical. Where theMagistrate's own order exculpates rather than inculpates the accused, he is not justified in makingremarks seriously to the accused's prejudice which will be justified only if this order tended toinculpate rather then exculpate."Even in squeaky clean prim and proper Singapore sometimes things get a little awry. The Singapore Straits Times of 02-02-2005 quoted the Cambridge educated Chief Justice Yong Pung How on a case mix-up as follows which shows thatanybody who is somebody could also loose their cool as well. He is reported by the Singapore Straits Times to have said :"I am very, very displeased with the proceedings here. I will call up every fellow in theSubordinate Courts... What the hell went on here?"

"This is an incredible mix-up. People say the courts are very efficient. I don't think so lah. I willfind out who is to blame what went wrong."Those manning the judiciary must of necessity be mindful of their duties deportment their positions and their obligations.They have to be conservative and conscious of their competency and comportment and assist to keep the flow of thestreams of justice clear and unpolluted.Discrepancies inconsistencies and dissensions are not reflective of an independent mind or an independent judiciary, notnecessarily any way. A Judge in an Appellate Court need not hand down a dissenting judgment just to evidence to all andsundry that there is judicial independence. A dissenting judgment is not an outward show of an independent mind. It maybe a mere divergence of views.Some dissenting judgments can be brilliant. Lord Denning in "The Discipline of the law" said :"Many a time I have been asked : "Why did you step down from the House of Lord? Myanswer is : 'I was too often in a minority. In the Lords it is no good to dissent'. In theCourt of Appeal it is some good. On occasion a head-note there says: 'Lord Denningdissenting'. Let me recall a few which have pointed to the way ahead, and have led todecisions by the Lords which might never have taken place except for my dissentingfrom previous precedents such as Candler v Crane, Christmas about negligentstatements, Bonsor v Musicians' Union about trade unions, Conway v Rimmer aboutCrown privilege, Padfield's case about ministerial discretion and Schorsch GmbH v Lord Denning


Hennin about judgments in foreign currency.

You must remember too that during the five years that I was there - from 1957 to 1962 - the Househeld itself to be absolutely bound by the doctrine of stare decisis. If a previous decision was wrong -and caused injustice - nobody could put it right except Parliament and they were not interested inreforming the law."In his conclusion he said :"Let it not be thought from this discourse that I am against the doctrine of precedent. I am not. It isthe foundation of our system of case law. This has evolved by broadening down from precedent toprecedent. By standing by previous decisions, we have kept the common law on a good course. Allthat

I am against is its too rigid application - a rigidity which, insists that a bad precedent mustnecessarily be followed. I would treat it as you would a path through the woods. You must follow itcertainly so as to reach your end. But you must not let the path become too overgrown. You mustcut out the dead wood and trim off the side branches else you will find yourself lost in thickets andbrambles. My plea is simple to keep the path to justice clear of obstructions which would impedeit.Dr L.M. Singhvi, Chairman of the Bar, New Delhi, (A.I.R. 1981 Journal 1) said as follows:"...the bar is the judge of judges and no judge can avoid or escape the verdict ofthe bar."I quote T.N. Seshan in "The Regeneration Of India" where he said:"When one speaks or writes about the judiciary, one must do so with the greatestcircumspection and caution. And with great respect."And Robert J. Ingersoll is quoted to have said :"We must remember, too, that we have to make judges out of men, and that by being made judgestheir prejudices are not diminished and their intelligence is not increased."Verbosity and over and unnecessary use of adjectives should be avoided or at least minimized to make them meaningful.In Ng Hong Chai vs Teak Ah Kow (2000) 5 CLJ page 175 Abdul Malik Ishak J said thus in concluding his judgment when theCounsel for the Appellant "quite magnanimously threw in his towel and conceded that he was going on an uphill task andhe in fine style submitted that encl. 36 should be dismissed with costs. I then, unhesitatingly dismissed encl. 36 with costs."He concluded: I would like to place on record that the learned counsel for the respondent in the person of Miss Gan JuiChui performed extremely well at the bar - an excellent advocate and solicitor that should be a source of pride to the JohorBar."The same Judge in the case of Insofex Sdn Bhd v Labasama Group (M) Sdn Bhd 2000 (3) AMR page 2846 concluded hisjudgment thus : "Both Mr Gana Muthusamy and Mr C Kumareson argued the appeal in Encl 74 with vigour and vitality.They have done thorough research which greatly assisted me in adjudicating Encl 74. Both these fine gentlemen andremarkable lawyers showed beyond doubt that "the law is not the same at morning and at night."In the case of Tan Kheng Guan v Pendaftar Hakmilik Johor; Teo Ah Bin (Intervener) 2000 (8) CLJ page 620 said of himself andhis judgment that "impartiality and fairness were exhibited all the way for everyone to see and admire." A quote isattributed to Abraham Lincoln who is said to have said that a lawyer who has himself for counsel has a fool for a client.Now what about Judges? With respects is it not within the province of others to judge judges and judgments. And in anytrial one party succeeds and other loses and both would not think that the judgment was fair except in exceptional cases.At a Lord Mayor's Banquet in 1936 the Lord Chief Justice Lord Hewart spoke. He said : "His Majesty's Judges are satisfied

with the almost universal admiration in which they are held". In his memoirs "Not Without Prejudice" Lord Hewartexplained the reason for the user of the word "almost". He said it was his natural caution that prompted him to use such aword as "almost".Fast forward from 1936 to the 1990's and Lord Taylor at the Richard Dimbleby Lecture on 30-11-92 said that "no judgetoday would express such sentiments: if he did he would be lambasted by the press, and rightly so. The 1990's were ratherturbulent times in the U.K. Lord Taylor was of the view the judges were partly to be blamed because of their self imposedisolation which had cut them away from the society as a whole. He felt that judges should be in touch with society withoutprejudicing or sacrificing their independence.

T.N. Seshan

(Cont’d page 22)


Joshua Rozenberg in 'The Search for Justice' writes that in England the judges have a unique role. He says, "it has alwaysbeen part of their job to make new law. As we shall see that is inevitable: parliament cannot provide for everycontingency."William G. Borges in an article 'Judicial restraint key to democracy' which appeared in The Sun (15-03-2002) noted that"...regardless of how popular a court's decisions may be when those decisions stem from personal or politicalpreference — instead of from the written law — the court has abandoned its proper role as an honest interpreter orlaws."Henry Cecil in the book "The English Judge" said :

"Every sane person abuses his power from time to time, but a judge has many more opportunities ofdoing this than most other people. One unfair remark by one judge can bring the judiciary as awhole into disrepute just as few unruly and bad-mannered students can give the young people oftoday a bad name. In each case the percentage is tiny but the harm is done just the same.

The judge is in a unique position, Not merely is everything said by him during a case absolutelyprivileged but he cannot be shouted down as in Parliament or even answered back if he refuses toallow it. He can cause great misery and frustration to parties, witnesses and advocates. The harmthat a judge can do is not merely in actual injustice that is wrong decisions but in sending litigants(and advocates) away with a feeling that their cases have not been properly tried".Bertrand Russell's words are worthy of quote:"Men who allow their love of power to give them a distorted view of the world are to be found inevery asylum; one man will think he is the Governor of the Bank of England, another will think heis the King, and yet another will think he is God. Highly similar delusions, if expressed by educatedmen in obscure language, lead to professorships in philosophy…"Another worthy quote is from Dato' Seri (now Tun) (Dr) Mahathir Mohamed who is said tohave said thus on power and arrogance:

"In law as in other segments of society, there is no place for arrogance.Arrogance is a sign of weakness, not strength. It is the hallmark of insecurity,not of character. Let me add that arrogance is by no means the monopoly ofthose in positions of authority. Very often an imagined power or influencemanifests itself in arrogance."

[1985] 2 MLJ page cxcvAristotle said "Real show of power is in restraint".Denning in this book "What Next In The Law" narrated as follows:"Lions under the throne!" "It was Francis Bacon in his Essay, Of Judicature, who said:

Let judges also remember that Solomon's throne was supported by lions on both sides: let them belions, but yet lions under the throne; being circumspect that they do not check or oppose any pointsof sovereignty.

True enough if the Throne is occupied by a constitutional monarch as ours is. But the judges are notto be lions under the Government of the day - or of any Government. They are and must beindependent of the executive government - ready to check or oppose it if it should in any way misuseor abuse its power.

Francis Bacon ends his Essay with a less controversial precept :

Let not judges also be so ignorant of their own right as to think there is not left to them as aprincipal part of their office a wise use and application of laws. For they may remember what theApostle saith of a greater law than theirs: Nos scimus quia lex bona est, modo quis ea utatur legitimewhich is translated in the Authorised Version, l Timothy 1:8: 'But we know that the law is good, if aman use it lawfully."It is an accepted notion that although separations and distinctions amongst men are necessary to preserve the well rulingand government of men and mark and delineate subordination one must be mindful that even those on the lowest level areequally entitled to justice and fairness for a time will come to all (no one can say when) when death which is said to be thegrand leveller will render and reduce players participants and all peoples to a common level to the ground. That is whenall distinctions of man will cease save justice truth and fairness. So let us all be mindful of our ultimate destiny and not bearrogant proud and egoistic in this short sojourn.

Tun Dr Mahathir Mohamad


Judges ought to be mindful that "the association of religion with law arises from the original concept that theadministration of justice was an expression of the King's conscience which was within the ecclesiastical domain. Thepresent concept is that justice is the expression of the conscience of the people expressed through His Majesty theYang di-Pertuan Agong in Parliament and his Courts", per David Marshall 1965 (1) MLJ xi.We are in a search for justice. We want to keep the streams of justice pure and unsullied. Justice is nearest to our hearts. AsLord Hailsham once said : "I am a lawyer and the son of a lawyer and the father of two lawyers and the well being andprosperity of the legal profession is one of the causes nearest to my heart." (Speech to the City of London SolicitorsCompany Ladies Banquet 15 April 1987).Lord Havers a Lord Chancellor was asked by Mrs Thatcher to resign on grounds of ill-health after he had been in office forjust four months. Lord Havers had the unique distinction in modern times of combining the shortest period in office asLord Chancellor with the longest service as a law officer he had been Attorney General for eight years. Havers was the sonof a judge, the brother of a judge and the father of a prominent barrister.Lord Denning in his book "Whats Next In The Law" in the last chapter on "The judges themselves" wrote:

"There remains the most touchy question of all. May not the judges themselves sometimes abuse ormisuse their power? It is their duty to administer and apply the law of the land. If they should divertit or depart from it - and do so knowingly - they themselves would be guilty of a misuse of power. Sowe come up against Juvenal's question, 'Sed quis custodiet ipsos custodies?' (But who is to guard theguards themselves?) Suppose a future Prime Minister should seek to pack the Bench with judges ofhis own extreme political colour. Would they be tools in his hand?

To that I answer 'No'. Every judge on his appointment discards all politics and all prejudices. Youneed have no fear. The judges of England have always in the past - and always will - be vigilant inguarding our freedoms. Someone must be trusted. Let it be the judges."In the interest of generations hereafter we have to protect promote and preserve and keep inviolate the dignity of theBench and Bar.Let us pray for change of attitudes and enhancement of professionalism proficiency propriety and productivity and praythat people in power will not be pugnacious and or puerile.

S BALARAJAHJOHOR BAHRU

References :1. David Pannick 'Judges" 9. The Regeneration Of India by T.N. Seshan2. With Justice For None by Gerry Spence 10. A Head Full Of Burden by TN. Seshan3. The Search For Justice by Joshua Rozenberg 11. The Art Of Writing Judgments by B.N. Chaudhuri4. What Next In The Law by Lord Denning 12. Insaf, Journal of the Malaysian Bar5. The Discipline of Law by Lard Denning 13. Malayan Law Journals6. The Closing Chapter by Lord Denning 14. Current Law Journals7. V.R. Krishna lyer "Off the Bench." 15. All Malaysian Reports8. The Degeneration Of India by T.N. Seshan 16. All England ReportsQUOTABLE QUOTE :

“Is a duty to obey, an absolute or qualified duty?”“The duty to obey the laws of the State is surely qualified duty. To employ a familiar reduction adabsurdum: if the State made a law requiring the police to kill all blue-eyed babies, it would be theduty of the police to disobey.”

- Rt. Hon. Lord Justice Lawsat Cumberland Lodge,

Windsor Great Park17 May 2005

Editor’s note :This is an abridged version of the article firstpublished in Info Johore Bar March 2006

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